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..id

which to meet its engagements, to bind it, yet if the Company there-
borrowed notes, caused them to be after, with knowledge of such set-
discounted and used the money, tlement and of its terms, indorses
under an agreement to pay the absolutely and appropriates to its
notes at maturity....

own use the note received on such

settlement, it thereby ratifies the
7. Such a transaction is not void settlement and vests in such officer
under section 8 of the act which

title to the note so wrongfully ta-
declares that no transfer, not au-

ken, and he or his vendee can main-
thorized by a previous resolution

tain an action on it against the ma-
of the Board of Directors, shall be kers. Houghton v. Dodge et al., .326
made by such a corporation of any
of its effects exceeding in value 10. When the proof is, that“ the Com-
$1,000, when it appears that a re-

pany used the note" taken on such
solution was passed authorizing the
officers to give such security as they

settlement, and “paid it to" a cre-

ditor “in payment of a debt which
should think proper for those who

they owed to such creditor, and
should lend their notes, and the

there is no other evidence in respect
officers did in good faith, without

to such transfer, the presumption is,
fraud or collusion, deliver a suitable

that such transfer was made in a
amount as such security, and it fur-

manner authorized by law and the
ther appears, in reference to the

charter and by-laws of the Compa-
particular notes transferred, that the

ny......
Board also resolved that the officers

id
proceed in liquidation of the liabili-
ties of the Company therewith...id 11. A resolution of the Board of Di-

rectors directing the officer to pro-
8. A transfer by a moneyed corpora-

ceed with certain notes, mentioned,

to liquidate the indebtedness of the
tion of negotiable notes, as collateral

Company, is a sufficient authority to
security to secure a present loan to
be used in due course of business,

warrant the officers in settling an

indebtedness to the plaintiff's by
is not a transfer with intent to give
a preference to one creditor over

paying a part, appropriating an in-

debtedness from the plaintiffs not
others, within the act forbidding
such transfers by a moneyed corpo-

yet payable, in further payment,
ration when insolvent. And there-

and transferring to them a portion

of such notes as security for the
fore upon that state of facts it is

balance on their agreeing to give
not error to reject evidence that at

further time of payment. Brook-
the time of the loan the corporation

man v. Metcalf, .

.429
was insolvent. ...
Nelson et al. v. Wellington, ...178

12. Such a transaction makes the
9. Where property of a moneyed

plaintiffs bona fide holders for value

in such sense that the transfer to
corporation (viz., a note made by
third persons) is wrongfully taken

them is valid, even without a reso-
by one of its officers, and all its

lution of the Board of Directors,
claims against such officer, including

though it exceeds $1,000, if they
its claim for the taking of such note,

have no notice of the want of such
resolution.

.id
are subsequently settled, and a re-
lease given to such afficer on taking
his note for a balance agreed upon; 13. In such case the maker of the note
although the persons acting in be- cannot use as a defense by way of
half of the Company, in making the set-off or counterclaim, an indebt-
settlement and giving the release edness by the Company to him for
acted without competent authority losses which did not become paya-

.id

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1. Liable for altering grade of street,
in violation of a statute regulating
the subject. Leman v. The Mayor,
&c., of New York,

.414

MUTUAL ACCOUNTS.

Vide LIMITATIONS, STATUTE OF.

MUTUAL INSURANCE COM-

PANY.

Vide INSURANCE COMPANY.

MONEYED CORPORATION.
PROMISSORY Notes, 1 to 10, 17.

N

3. Where, by the contract with the
carpenters, (in such case,) they had
agreed to construct a suitable gutter
to receive the water falling upon the
roof, and a leader running down to
the basement, where it was to be
connected with a main pipe leading
into the sewer, and the carpenters
had left the leader untinished over
the Sabbath, not extending within
twelve or fifteen feet of the ground,
and negligently omitted to provide
effectual means of carrying off the
water, in consequence of which,
during a storm, the water flowed
through the leader to the ground,
and thence into the premises of the
plaintiff's next adjoining, and caused
injury to their goods: Held, that
the owner is not liable for the dama-
ges.

id
4. Held, also, by the Superior Court,
that the neglect of the plumber,
who was to furnish and introduce
the main pipe leading to the sewer,
to introduce it in due season and
before the storm, was no excuse to
the carpenters for not extending the
leader down to the basement, and
did not make the owner liable. But

NAME.

1. Identity of name presumptive
evidence of identity of person, when
they appear in connection with the

held, in the Court of Appeals, that sault by a third person upon the
if the neglect to put in the main team, by which it was frightened
pipe caused the accident, it was the and rendered unmanageable, and
duty of the owner to cause it to be while frightened and unmanageable
done, and he is not excused by rea ran over the plaintiff. Weldon v.
son of his having contracted with The Harlem R. R. Company,..576
the plumber to do it. ......id

8. The Company is not responsible
5. Proof that a coach driven upon for such act of such third person,
one of the piers owned by the cor though he may have been at the
poration of the city of New York time employed by it in some capa-
at the foot of one of the streets, city, he not being at the time of such
breaks through a plank that is de act actually attending to any busi-
cayed, by means of which the plain ness for which he had been employ-
tiff's trunk is thrown into the river, ed, or acting in any matter in behalf
and its contents damaged, is not of the Company......

...id
sufficient to sustain an action against
the city for the injury, nor to put 9. A ship owner is liable for goods
the defendants to proof of reasona received on board for carriage, al-
ble and proper care and diligence though the ship is burned in the
in keeping such pier in repair. port of shipinent without actual
(WOODRUFF, J., dissented.) Garri negligence on his part, and before
son v. The Mayor, &c., of the City a bill of lading is signed. Lakeman
of New York,

.497 et al. v. Grinnell et al., ..625
6. In order to establish, even prima 10. Carrier of passengers may by spe-
facie, a right of action the plaintiff cial contract protect himself against
must show affirmatively on his part liability for negligence of his ser-
not only that the plank was decay vant, not being himself in any fault.
ed, but that the proper officers of Boswell

, Administrator, v. Hudson
the corporation had notice that it River Railroad Company,.....699
was decayed, or show that it was
obvious to the eye without any par-
ticular examination. (WOODRUFF, J.,

NEW TRIAL.
dissented.) ...

1. Where the facts specially found
7. In an action against a Railroad entitle a defendant to a general ver-
Company, to recover damages alle dict, the plaintiff will not be enti-
ged to have been caused by the tled to a new trial because portions
negligence of the defendants' driver of the charge may have been erro-
in the management of his team in neous, when such portions of the
taking it through a public street charge could not possibly affect the
after it had been detached from a minds of the jury in considering the
car it had been drawing, a verdict evidence relating to or in determin-
for the plaintiff will be set aside as ing such special facts. Holdane et
contrary to evidence, where the al. v. Butterworth,.

..1
testimony is uncontradicted that the
manner in which the team was 2. A motion for a new trial on the
managed was such as had been ground of surprise, cannot be made
pursued by this and other similar as a matter of right, after judgment
Companies for years without acci has been perfected.

Barnes v.
dent, and was considered, by those

Roberts,

...73
engaged in such business, safe and
discreet, especially where it is 3. Where, on an accounting between
proved that the injury was caused partners in a suit brought for that
by an unexpected and wanton as purpose, two of the defendants claim

Bosw.-Vol. V. 94

..id

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that a note of a third person for
$500 was contributed by the other
partner, and was credited to him as
so much capital, and that only $200
of it was paid, and that $300 of its
amount should be charged by the
Referee to such other partner, and
it is so charged, the judgment will
not be reversed merely because the
Referee received incompetent evi-
dence tending to prove that it had
been paid in full

, as it is clear that
receiving such evidence was not
prejudicial to the defendants. Boyd
v. Foot & Cole,

110

4. Where, on such an accounting, a
referee erroneously refuses to allow
to the defendants the proper credit
in respect to a particular item, the
judgment will not necessarily be
reversed. If the plaintiff chooses
to stipulate to deduct the whole
amount of the defendants' claim in
respect to such item, the Court will
order the deduction made, and affirm
the judgment as to the residue.. id

5. In an action against a common
carrier to recover the value of a
horse, alleged to have been fatally
injured through the negligence of the
carrier during its transportation by
him, although the evidence in re-
spect to its value be conflicting and
proper to be submitted to the jury,
yet their verdict will be set aside, as
excessive in amount, if the verdict
be for a sum which, in the opinion
of the Court, is clearly much larger
than is warranted by the evidence.
Harris v. Panama Railroad Com-
pany,..

312

6. It is the duty of counsel, when ob-
jecting to a question, if he states the
ground of objection, as he may
properly be required to do,) to state
an objection which is well founded,
otherwise his exception to the deci-
sion of the Court which overrules
his objection and admits the evi-
dence will not avail him as an ex-
ception...

id

7. Hence, when, on the trial of an
action, a question is put to a witness,
and it is objected to on a specific
ground, which is properly overruled,
and the objecting party excepts, that
exception will be unavailing, and
will furnish no reason for relieving
the party from paying costs as a
condition of obtaining a new trial,
although the Court are of opinion
that, upon other grounds, not sug-
gested on the trial, the evidence was
inadmissible...

.....id

8. The Court may, nevertheless, if
satisfied that injustice has been done,
and that the jury may probably
have been improperly influenced by
the objectionable evidence, make
that one of the considerations indu-
cing them to grant a new trial on a

case,

...id

9. Although the plaintiff establishes a

prima facie cause of action, yet if
the evidence on the part of the de-
fendant is very greatly prepondera-
ting, a verdict for the plaintiff will
be set aside and new trial granted.
Kinsman v. New York Mutual Insu-
rance Company,

..460

Vide PRACTICE, title APPEAL.

NEW YORK, CITY OF.

1. The Mayor, Aldermen and Com-
monalty of the city of New York,
since the passage of the act entitled
"An act to make permanent the
grades of the streets and avenues
of the city of New York,” passed
March 4, 1852, cannot, even under
the authority of an ordinance passed
by both branches of the Common
Council and approved by the Mayor,
change the grade of any street in
said city, established by law when
said act was passed, sou of Sixty-
third street, without becoming liable
to the owner of any lot or building on
the street so altered, for all damages
caused to him, as such owner, by
reason of the making of such change

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OFFICERS OF CORPORATIONS.

1. Power to accept accommodation
bills, .....

...275

2. Liability of corporation for their
tort, .

...293

P

2. By the terms of that act it is de-
clared that it shall not be lawful for
the Common Council of the city of
New York to change such estab-
lished grade, without such consent;
if therefore they make such change
and the defendants by their agents
proceed to carry it into actual exe-
cution to the injury of the owners
of lots on the street, the city is
liable for the damage sustained. . id

PARTNERS AND PARTNERSHIP

3. Where, in consequence of the
breaking through a plank in one of
the piers belonging to the city, at
the foot of a street, a coach was
partially overturned, and the plain-
tiff sustained damage, proof that
the plank was decayed is not prima
facie evidence of negligence; the
plaintiff must show that the proper
officers of the corporation had notice
of the defect, or show that it was
obvious to the eye without any par-
ticular examination. (WOODRUFF, J.,
dissented.) Garrison v. The Mayor,
&c., of New York,

.497

NOTARY.

1. Where a person (B.) is in part-
nership with another (T.), in a
business described as the business
of “The Atlantic Forge Company,
but in which the correspondence is
conducted and all contracts made
in the name of T., (the name of B.
in no manner appearing in the busi-
ness,) and thereafter the firm is dis-
solved, and a new partnership is
formed by T., the co-partner, and a
third person, under a different name,
to conduct the same business at the
same place, and the partners in
such new firm immediately send a
notice of that fact signed by them,
by post, to all who had dealt with
the old firm, and subsequently a
vendor who had never dealt with
the old firm, makes a sale of goods
on credit, nominally, to such former
co-partner, T., in whose name the
business of the old firm had been
done, and takes a note signed by
the new firm in its true name, he
cannot charge the person, so retir-
ing, as a continuing partner, al-
though he knew by common noto-
riety that the person so retiring

1. Evidence of due diligence in
making presentment to makers of
a note, competency of answers made
to his inquiries to find makers, con-
sidered. Adams v. Leland et al., 411

NOTICE.
(Of dissolution of Partnership.)
Holdane et al. v. Butterworth, ......1

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